pop a shot

Case 2:13-cv-02593-JAR-DJW Document 1 Filed 11/20/13 Page 1 of 19
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS
POP-A-SHOT, INC., )
a Kansas corporation, )
Plaintiff, )
)
v. ) Case No. 2:13-cv-2593
)
TRIUMPH SPORTS USA, INC., )
a Wisconsin corporation, )
)
Defendant. )
)
COMPLAINT
1. This is an action at law and in equity to remedy acts of trademark
infringement and contributory trademark infringement under 15 U.S.C. §1114; unfair
competition under 15 U.S.C. §1125(a); dilution under 15 U.S.C. §1125(c); trademark
infringement, unfair competition, and dilution under the Revised Kansas Trademark Act, K.S.A.
81-201 et seq. and the common law of the State of Kansas; all caused by Defendant’s
unauthorized use of Plaintiff’s distinctive trademark and trade name.
THE PARTIES
2. Plaintiff Pop-A-Shot, Inc. (“Pop-A-Shot” or “Plaintiff”) is a corporation
organized and existing under the laws of the State of Kansas with its principal place of business
at 200 North Third, Salina, Kansas 67402-1073, and is in the business of selling arcade-type
basketball games under a federally registered trademark.
3. On information and belief, Defendant Triumph Sports USA, Inc.
(“Triumph” or “Defendant”) is a Wisconsin corporation with its principal place of business at
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11327 West Lincoln Avenue, West Allis, Wisconsin 53227, and is in the business of selling
arcade-type basketball games and various other products in the sporting goods industry.
JURISDICTION AND VENUE
4. This Court has jurisdiction of the action under 15 U.S.C. § 1121 and 28
U.S.C. §§ 1331, 1338(a) and (b), and 1367.
5. Defendant is doing business and committing acts of infringement in this
judicial district and thus is subject to personal jurisdiction in this judicial district.
6. Venue is proper in this judicial district pursuant to 28 U.S.C. §1391.
BACKGROUND
7. Plaintiff repeats and incorporates the allegations contained in the
preceding paragraphs.
8. On August 13, 1985, United States Trademark Registration No. 1,354,415
was duly and legally issued to Pop-A-Shot for use of the mark POP-A-SHOT® in association
with equipment sold as a unit for playing an arcade-type basketball game. A copy of the U. S.
registration certificate is attached hereto as Exhibit A.
9. Registration No. 1,354,415 is valid and subsisting, has not been canceled,
and constitutes prima facie evidence of the validity of the registered mark, of the registration of
said mark, of Plaintiff’s ownership of said mark, and of Plaintiff’s exclusive right to use the mark
in commerce. Moreover, the mark has become incontestable pursuant to 15 U.S.C. § 1065.
10. This action stems not only from Triumph’s disregard for trademark rights
in the well-known POP-A-SHOT® trademark, but also Triumph’s blatant attempt to exploit the
goodwill that the mark has acquired over the last 30 years. Triumph has intentionally used “Pop
Shot” to mislead consumers into believing that its product is affiliated with Pop-A-Shot.
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11. Pop-A-Shot is owned by Ken Cochran who created the POP-A-SHOT®
trademark and invented the original arcade-type basketball game. Mr. Cochran is a successful
former collegiate basketball coach who developed the POP-A-SHOT® game to allow all
individuals, even those lacking athletic ability, to enjoy the game of basketball.
12. Pop-A-Shot first started manufacturing and selling arcade-type basketball
games under the POP-A-SHOT® mark in 1982. The company continues to develop and sell
products under the POP-A-SHOT® mark to this day. Plaintiff has marketed arcade-type
basketball games under the POP-A-SHOT® mark online and through various other means since
1982.
13. POP-A-SHOT® products have gained worldwide recognition and have
been featured on television shows such as Good Morning America, The Price is Right, and
The Rosie O'Donnell Show.
14. Numerous articles have been written and published about POP-A-SHOT®
and its arcade-type basketball game. Such articles have been featured in publications such as
Forbes Magazine, Sports Illustrated, The Kansas City Star, and The Wichita Eagle.
15. Many well-known celebrities and athletes, such as Marcus Allen, Wilt
Chamberlin, Clyde Drexler, Charles Barkley, Kobe Bryant, LeBron James, Carmelo Anthony,
Steve Harvey, President Bill Clinton, Kelly Ripa, Rosie O’Donnell, and Kim Kardashian, have
used POP-A-SHOT® games or taken part in POP-A-SHOT® sponsored competitions.
16. Popular events such as the POP-A-SHOT® World Championship have
been sponsored and organized around POP-A-SHOT® and its products.
17. The POP-A-SHOT® mark is inherently distinctive and, as a result of its
use, has developed an image and customer base, and customers familiar with POP-A-SHOT®
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arcade-type basketball games naturally associate any so-labeled product with Plaintiff and
assume it is a product marketed by Plaintiff.
18. Pop-A-Shot has built up and now owns valuable goodwill that is
symbolized by the POP-A-SHOT® mark.
19. The POP-A-SHOT® mark is distinctive and has achieved significant
secondary meaning and fame.
20. Through Pop-A-Shot’s untarnished reputation and investment of time,
money, creativity and efforts, the POP-A-SHOT® mark has acquired significant value and good
will in this District and across the country.
21. By virtue of Pop-A-Shot’s trademark registration, Triumph has had at
least constructive notice of Pop-A-Shot’s rights in the POP-A-SHOT® mark.
22. As early as 2013, Pop-A-Shot was made aware of infringing uses by
Triumph at which point Pop-A-Shot sent a cease and desist letter to Triumph providing actual
notice of Pop-A-Shot’s rights in the mark.
23. Triumph has used “Pop Shot” on its products, packaging, and/or
advertisements is confusingly similar and substantially indistinguishable from Pop-A-Shot’s
registered POP-A-SHOT® mark. Exhibit B attached hereto shows “Pop Shot” being used on
Triumph’s product packaging and an owner’s manual.
24. Triumph has used “Pop Shot” on advertisements and product packaging
without the consent of Pop-A-Shot.
25. Pop-A-Shot is not affiliated or related to Triumph.
26. Pop-A-Shot has not, and does not, license, endorse or approve of
Triumph’s use of “Pop Shot”.
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27. On information and belief, Triumph regularly solicits, transacts and
conducts business in the State of Kansas, and has advertised and sold arcade-type basketball
games using “Pop Shot” through various retail stores both online and in the State of Kansas.
28. Triumph has supplied arcade-type basketball games to retailers with the
knowledge that the retailers are using “Pop Shot” without license and without authorization from
Pop-A-Shot.
29. Triumph’s use of “Pop Shot” on product packaging and advertisements for
arcade-type basketball games, including in online advertisements, is likely to confuse consumers
into believing that Triumph is in some way affiliated with Pop-A-Shot.
30. Triumph’s retailers’ use of “Pop Shot” on product packaging and
advertisements for arcade-type basketball games, including in online advertisements, at the
points of sale for such arcade-type basketball games is likely to confuse consumers into believing
that Triumph is in some way affiliated with Pop-A-Shot.
31. Triumph’s infringing acts are deliberate, willful and intentional with actual
and constructive knowledge of and disregard to Plaintiff’s rights.
32. The aforesaid acts of Triumph have caused and, unless restrained and
enjoined by this Court, will continue to cause irreparable damage, loss and injury to Plaintiff’s
business and the identity of the POP-A-SHOT® mark, for which Plaintiff has no adequate
remedy at law.
COUNT I
TRADEMARK INFRINGEMENT (15 U.S.C. § 1114(1))
33. Plaintiff repeats and incorporates each and every allegation contained in
the preceding paragraphs.
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34. This claim for trademark infringement arises under Section 32 of the
Lanham Act (15 U.S.C. § 1114).
35. Defendant’s unauthorized use of “Pop Shot”, as set forth above, is likely
to cause confusion among consumers and, unless enjoined by this Court, will continue to cause
confusion, mistake or deception as to the origin of Defendant’s goods and to mislead the trade
and public into believing that Defendant’s goods originate from, are affiliated with, or are
sponsored by, authorized, approved or sanctioned by Plaintiff.
36. Defendant’s conduct is intended to take advantage of Plaintiff’s protected
trademark and to exploit the goodwill and reputation that Plaintiff has developed.
37. Defendant’s willful activities constitute an infringement of Plaintiff’s
rights in violation of Section 32(1) of the Lanham Act (15 U.S.C. § 1114(1)).
38. Defendant’s unlawful acts of infringement have caused and continue to
cause Plaintiff to sustain monetary damage, loss and injury in an amount to be determined at the
time of trial.
39. Defendant has engaged and continues to engage in these activities
knowingly, willfully and intentionally so as to justify the assessment of treble damages against
Defendant.
40. Plaintiff has no control over the quality of the products sold by Defendant
as “Pop Shot” merchandise. Because of the likely confusion as to the source of Defendant’s
products, Plaintiff’s valuable goodwill in the trademark is at the mercy of Defendant.
41. As a result of Defendant’s unlawful acts of willful infringement and use of
“Pop Shot” in connection with the sale, offering for sale and/or distribution of goods, Plaintiff
has suffered and continues to suffer irreparable harm, including but not limited to detriment to
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and diminution of the value of its mark for which there is no adequate remedy at law.
Accordingly, Plaintiff is entitled to an injunction against Defendant pursuant to Section 34 of the
Lanham Act (15 U.S.C. § 1116).
42. As a result of Defendant’s unlawful acts of willful infringement and use of
“Pop Shot” in connection with the sale, offering for sale and/or distribution of goods, Plaintiff is
entitled to recover Defendant’s profits, damages sustained by Plaintiff and the cost of this action
pursuant to Section 35(a) of the Lanham Act (15 U.S.C. § 1117(a)).
43. As a result of Defendant’s unlawful acts of willful infringement and use of
“Pop Shot” in connection with the sale, offering for sale and/or distribution of goods, Plaintiff is
entitled to an award of its reasonable attorneys’ fees as an exceptional case pursuant to Section
35(a) of the Lanham Act (15 U.S.C. § 1117(a)).
44. As a result of Defendant’s unlawful acts of willful infringement and
intentional use of “Pop Shot” in connection with the sale, offering for sale and/or distribution of
goods, knowing that such use was an infringing mark, Plaintiff is entitled to confiscation and
destruction of the infringing articles pursuant to Section 36 of the Lanham Act (15 U.S.C. §
1118).
COUNT II
CONTRIBUTORY TRADEMARK INFRINGEMENT (15 U.S.C. § 1114(1))
45. Plaintiff repeats and incorporates each and every allegation contained in
the preceding paragraphs.
46. Defendant supplies its product to distributors and/or retailers.
47. Defendant has direct knowledge that its distributors and/or retailers are
infringing Plaintiff’s POP-A-SHOT® mark.
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48. Defendant has intentionally induced its distributors and/or retailers to
infringe Plaintiff’s POP-A-SHOT® mark and, on information and belief, continues to supply its
product to distributors and/or retailers whom Defendant knows or has reason to know are
engaging in trademark infringement of Plaintiff’s POP-A-SHOT® mark.
49. On information and belief, Defendant’s actions, through its distributors
and/or retailers, have caused confusion among consumers, and unless enjoined by this Court, are
likely to cause further confusion, mistake or deception as to the origin of Defendant’s goods and
to mislead the trade and public into believing that Defendant’s goods originate from, are
affiliated with, or are sponsored by, authorized, approved or sanctioned by Plaintiff.
50. Defendant’s conduct, through its distributors and/or retailers, is intended
to take advantage of Plaintiff’s protected trademark and to exploit the goodwill and reputation
that Plaintiff has developed.
51. Defendant’s willful activities constitute contributory infringement of
Plaintiff’s rights.
52. Defendant’s unlawful acts of contributory infringement have caused and
continue to cause Plaintiff to sustain monetary damage, loss and injury in an amount to be
determined at the time of trial.
53. Defendant has engaged and continues to engage in these activities
knowingly, willfully and intentionally so as to justify the assessment of treble damages against
Defendant.
54. Plaintiff has no control over the quality of the products sold by Defendant,
through its distributors and/or retailers, as “Pop Shot” merchandise. Because of the actual
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confusion as to the source of Defendant’s products, Plaintiff’s valuable goodwill in the
trademark is at the mercy of Defendant.
55. As a result of Defendant’s unlawful acts of willful contributory
infringement and use of “Pop Shot” in connection with the sale, offering for sale and/or
distribution of goods, through its distributors and/or retailers, Plaintiff has suffered and continues
to suffer irreparable harm, including but not limited to detriment to and diminution of the value
of its mark for which there is no adequate remedy at law. Accordingly, Pop-A-Shot is entitled to
an injunction against Defendant and its distributors and/or retailers pursuant to Section 34 of the
Lanham Act (15 U.S.C. § 1116).
56. As a result of Defendant’s unlawful acts of willful infringement and use of
“Pop Shot” in connection with the sale, offering for sale and/or distribution of goods, through its
distributors and/or retailers, Plaintiff is entitled to recover Defendant’s profits, Defendant’s
distributor’s and/or retailer’s profits, damages sustained by Plaintiff and the cost of this action
pursuant to Section 35(a) of the Lanham Act (15 U.S.C. § 1117(a)).
57. As a result of Defendant’s unlawful acts of willful infringement and use of
“Pop Shot” in connection with the sale, offering for sale and/or distribution of goods, through its
distributors and/or retailers, Plaintiff is entitled to an award of its reasonable attorneys’ fees as an
exceptional case pursuant to Section 35(a) of the Lanham Act (15 U.S.C. § 1117(a)).
58. As a result of Defendant’s unlawful acts of willful infringement and
intentional use of “Pop Shot” in connection with the sale, offering for sale and/or distribution of
goods, knowing that such use was an infringing mark, Plaintiff is entitled to confiscation and
destruction of the infringing articles pursuant to Section 36 of the Lanham Act (15 U.S.C.
§ 1118).
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COUNT III
TRADEMARK DILUTION (15 U.S.C. § 1125(c))
59. Plaintiff repeats and incorporates each and every allegation contained in
the preceding paragraphs.
60. Defendant’s unauthorized use of “Pop Shot,” as set forth above, has
caused or is likely to cause dilution by blurring and/or dilution by tarnishment.
61. Defendant’s conduct is intended to take advantage of Plaintiff’s famous
trademark and to exploit the goodwill and reputation that Plaintiff has developed.
62. Defendant’s use of “Pop Shot” impairs the distinctiveness of Plaintiff’s
famous mark.
63. Defendant’s use of “Pop Shot” creates a false association arising from the
similarity between “Pop Shot” and Plaintiff’s famous mark harming the reputation of Plaintiff’s
famous mark.
64. Defendant has engaged and continues to engage in these activities
knowingly, willfully and intentionally so as to justify the assessment of treble damages against
Defendant.
65. As a result of Defendant’s unlawful acts of willful infringement and use of
“Pop Shot” in connection with the sale, offering for sale and/or distribution of goods, which has
caused or is likely to cause dilution, Plaintiff is entitled to an injunction against Defendant
pursuant to Sections 34 and 43(c)(1) of the Lanham Act (15 U.S.C. § 1116 and 15 U.S.C.
§ 1125(c)(1), respectively).
66. As a result of Defendant’s unlawful acts of willful infringement and use of
“Pop Shot” in connection with the sale, offering for sale and/or distribution of goods, Plaintiff is
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entitled to recover Defendant’s profits, damages sustained by Plaintiff and the cost of this action
pursuant to Section 35(a) of the Lanham Act (15 U.S.C. § 1117(a)).
67. As a result of Defendant’s unlawful acts of willful infringement and use of
“Pop Shot” in connection with the sale, offering for sale and/or distribution of goods, causing
dilution of Plaintiff’s mark, Plaintiff is entitled to an award of its reasonable attorneys’ fees as an
exceptional case pursuant to Section 35(a) of the Lanham Act (15 U.S.C. § 1117(a)).
68. As a result of Defendant’s unlawful acts of willful infringement and
intentional use of “Pop Shot” in connection with the sale, offering for sale and/or distribution of
goods, knowing that such use was an infringing mark, causing dilution of Plaintiff’s mark,
Plaintiff is entitled to confiscation and destruction of the infringing articles pursuant to Section
36 of the Lanham Act (15 U.S.C. § 1118).
COUNT IV
CONTRIBUTORY TRADEMARK DILUTION (15 U.S.C. § 1125(c))
69. Plaintiff repeats and incorporates each and every allegation contained in
the preceding paragraphs.
70. Defendant supplies its product to distributors and/or retailers.
71. Defendant has direct knowledge that its distributors and/or retailers are
infringing Plaintiff’s POP-A-SHOT® mark.
72. Defendant has intentionally induced its distributors and/or retailers to
infringe Plaintiff’s POP-A-SHOT® mark and, on information and belief, continues to supply its
product to distributors and/or retailers whom Defendant knows or has reason to know are
engaging in trademark infringement of Plaintiff’s POP-A-SHOT® mark.
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73. Defendant’s unauthorized use of “Pop Shot”, through its distributors
and/or retailers, as set forth above, has caused or is likely to cause dilution by blurring and/or
dilution by tarnishment.
74. Defendant’s conduct, through its distributors and/or retailers, is intended
to take advantage of Plaintiff’s famous trademark and to exploit the goodwill and reputation that
Plaintiff has developed.
75. Defendant’s use of Plaintiff’s famous mark, through its distributors and/or
retailers, impairs the distinctiveness of Plaintiff’s famous mark.
76. Defendant’s use of “Pop Shot,” through its distributors and/or retailers,
creates a false association arising from the similarity between “Pop Shot” and Plaintiff’s famous
mark harming the reputation of Plaintiff’s famous mark.
77. Defendant has engaged and continues to engage in these activities,
through its distributors and/or retailers, knowingly, willfully and intentionally so as to justify the
assessment of treble damages against Defendant.
78. Defendant’s unlawful acts of willful infringement and use of “Pop Shot”
in connection with the sale, offering for sale and/or distribution of goods, through its distributors
and/or retailers, has caused or is likely to cause dilution. Accordingly, Pop-A-Shot is entitled to
an injunction against Defendant pursuant to Sections 34 and 43(c)(1) of the Lanham Act (15
U.S.C. § 1116 and 15 U.S.C. § 1125(c)(1), respectively).
79. As a result of Defendant’s unlawful acts of willful infringement and use of
“Pop Shot” in connection with the sale, offering for sale and/or distribution of goods, through its
distributors and/or retailers, Plaintiff is entitled to recover Defendant’s profits, damages
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sustained by Plaintiff and the cost of this action pursuant to Section 35(a) of the Lanham Act (15
U.S.C. § 1117(a)).
80. As a result of Defendant’s unlawful acts of willful infringement and use of
“Pop Shot” in connection with the sale, offering for sale and/or distribution of goods, through its
distributors and/or retailers, causing dilution of Plaintiff’s mark, Plaintiff is entitled to an award
of its reasonable attorneys’ fees as an exceptional case pursuant to Section 35(a) of the Lanham
Act (15 U.S.C. § 1117(a)).
81. As a result of Defendant’s unlawful acts of willful infringement and
intentional use of “Pop Shot” in connection with the sale, offering for sale and/or distribution of
goods, knowing that such use was an infringing mark, through its distributors and/or retailers,
causing dilution of Plaintiff’s mark, Plaintiff is entitled to confiscation and destruction of the
infringing articles pursuant to Section 36 of the Lanham Act (15 U.S.C. § 1118).
COUNT V
FEDERAL UNFAIR COMPETITION AND
FALSE ADVERTISING (15 U.S.C. § 1125(a))
82. Plaintiff repeats and incorporates each and every allegation contained in
the preceding paragraphs.
83. Defendant’s activities as set forth above constitute false or misleading
descriptions of fact or origins and/or false or misleading representations of fact in commerce that
misrepresent is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation,
connection, or association of Defendant with Plaintiff, or as to the origin, sponsorship, or
approval of Plaintiff’s goods or commercial activities by Plaintiff.
84. Defendant’s activities as set forth above constitute false or misleading
descriptions of fact or origins and/or false or misleading representations of fact in commercial
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advertising or promotion that misrepresent the nature, characteristics, and qualities of
Defendant’s goods and commercial activities.
85. Defendant’s activities are likely to mislead the trade and public into
believing, inter alia, that Plaintiff is associated with Defendant and deprive Plaintiff of sales and
customers.
86. Accordingly, Defendant’s activities constitute unfair competition and false
advertising in violation of 15 U.S.C. §§ 1125(a)(1)(A) and (B).
87. Defendant’s acts of false advertising and trade libel have materially
injured and continue to injure Plaintiff’s business, including injury to Plaintiff’s reputation and
goodwill, and have caused Plaintiff to sustain monetary damages, loss and injury.
88. Defendant has engaged and continues to engage in these activities
knowingly, willfully and intentionally.
89. Defendant’s acts of unfair competition and false advertising, unless
enjoined by this Court, will continue to cause Plaintiff to sustain irreparable damage, loss and
injury, for which Plaintiff has no adequate remedy at law. Accordingly, Pop-A-Shot is entitled
to an injunction against Defendant pursuant to 15 U.S.C. § 1116.
90. As a result of Defendant’s unlawful and willful acts of unfair competition
and false advertising, Plaintiff is entitled to recover Defendant’s profits, damages sustained by
Plaintiff and the cost of this action pursuant to 15 U.S.C. § 1117(a).
91. As a result of Defendant’s unlawful and willful acts of unfair competition
and false advertising, Plaintiff is entitled to an award of its reasonable attorneys’ fees as an
exceptional case pursuant to 15 U.S.C. § 1117(a).
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COUNT VI
COMMON LAW UNFAIR COMPETITION
92. Plaintiff repeats and incorporates each and every allegation contained in
the preceding paragraphs.
93. This claim arises under Kansas state common law for unfair competition.
94. Through Plaintiff’s use of the POP-A-SHOT® mark in Kansas, Plaintiff
possesses significant common law rights in the mark.
95. The POP-A-SHOT® mark has become distinctive and acquired secondary
meaning among Kansas consumers.
96. Defendant’s use of “Pop Shot” and “passing off” of arcade-type basketball
games as Plaintiff’s constitute unfair competition as proscribed by the common law of various
states, including the State of Kansas.
97. Defendant’s adoption and use of “Pop Shot” in association with arcade-
type basketball games have caused and/or are likely to cause confusion, mistake or deception as
to the source, sponsorship, or approval of Defendant’s goods in that consumers are likely to
believe that Defendant’s goods are licensed by or somehow connected with Plaintiff which
misrepresents the nature, characteristics, and qualities of said goods, as proscribed by the
common law.
98. Defendant’s use of “Pop Shot” in connection with Defendant’s products is
made with actual or constructive knowledge of Plaintiff’s rights.
99. Defendant’s acts as complained of herein have caused Plaintiff to sustain
monetary damages, loss and injury in an amount to be determined at the time of trial.
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100. The aforesaid acts of Defendant have caused, and unless enjoined by this
Court, will continue to cause Plaintiff to sustain irreparable damage, loss and injury for which
Plaintiff has no adequate remedy at law.
101. As a result of Defendant’s willful and unlawful use of “Pop Shot” in
connection with the sale, offering for sale and/or distribution of goods in various states and the
State of Kansas, Plaintiff is entitled to recover its damages, Defendant’s profits, its attorneys’
fees and punitive damages.
COUNT VII
INJURY TO BUSINESS REPUTATION
AND DILUTION UNDER KANSAS LAW
102. Plaintiff repeats and incorporates each and every allegation contained in
the preceding paragraphs.
103. This claim arises under K.S.A. § 81-201 et seq.
104. Through Plaintiff’s use of the POP-A-SHOT® mark in Kansas, Plaintiff’s
mark has become distinctive and famous in Kansas.
105. Defendant’s adoption and use of “Pop Shot” in association with arcade-
type basketball games have caused and/or are likely to cause confusion, mistake or deception as
to the source, sponsorship, or approval of Defendant’s goods in that consumers are likely to
believe that Defendant’s goods are licensed by or somehow connected with Plaintiff which
misrepresents the nature, characteristics, and qualities of said goods, as proscribed by Kansas
law.
106. Defendant’s use of “Pop Shot” in connection with Defendant’s products is
made with actual or constructive knowledge of Plaintiff’s rights.
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107. Defendant willfully intended to trade on Plaintiff’s reputation or to cause
dilution of Plaintiff’s famous mark.
108. Defendant’s acts as complained of herein have caused Plaintiff to sustain
monetary damages, loss and injury in an amount to be determined at the time of trial.
109. The aforesaid acts of Defendant have caused, and unless enjoined by this
Court, will continue to cause Plaintiff to sustain irreparable damage, loss and injury for which
Plaintiff has no adequate remedy at law.
110. As a result of Defendant’s willful and unlawful use of “Pop Shot” in
connection with the sale, offering for sale and/or distribution of goods in various states and the
State of Kansas, Plaintiff is entitled to recover its damages, Defendant’s profits, its attorneys’
fees and punitive damages.
WHEREFORE, PLAINTIFF DEMANDS THE FOLLOWING RELIEF:
1. That Defendant and all other persons in active concert or participation
with Defendant who receive actual notice or knowledge of an injunction (pursuant to this
complaint) by personal service or otherwise, be preliminarily and permanently enjoined:
a. From further using, preparing producing, manufacturing, ordering,
printing, publishing, rendering, distributing, selling, offering for sale,
advertising, promoting or otherwise exploiting products under “Pop Shot”,
or under any other term, in a manner which is likely to cause confusion
with the POP-A-SHOT® mark;
b. From otherwise infringing upon the POP-A-SHOT® mark;
c. From further using, in connection with any goods or services, any false or
deceptive designation or description, whether by words or other symbols
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or representations, which suggest or imply any relationship with Plaintiff
or Plaintiff’s products;;
d. From further engaging in any unfair trade practice, unfair competition and
false advertising against Plaintiff;
e. From further using “Pop Shot” or any mark that is confusingly similar to
Plaintiff’s mark on any web site, advertisement or promotional material;
and
f. From in any way inducing, encouraging, aiding, abetting or contributing to
any of the aforesaid acts.
2. That the Defendant file with this Court and serve on Plaintiff in
accordance with 15 U.S.C. § 1116, within thirty (30) days after service on the Defendant of such
injunction (or such period as this Court may direct) a report in writing and under oath setting
forth in detail the manner and form in which it has complied with this injunction.
3. That in accordance with 15 U.S.C. § 1118, Defendant deliver to Plaintiff
for destruction or other disposition all products and promotional materials bearing or displaying
“Pop Shot”, or any mark confusingly similar to Plaintiff’s mark, in Defendant’s possession,
custody or control (and to recall for such purpose any such products and materials in the
possession, custody or control of any other person), as well as any reproduction, counterfeit,
copy or colorable imitation thereof.
4. That the Defendant be required to immediately account to Plaintiff for all
profits and advantages derived from its wrongful acts.
5. That Plaintiff be awarded monetary relief arising out of Defendant’s false
designation of origin, trademark infringement, unfair competition, and other unlawful acts in an
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amount in excess of $75,000, the precise amount of which is to be determined at the time of trial,
or any statutory penalties to which Plaintiff may be entitled.
6. That because of the willful nature of Defendant’s infringement, the Court
enter judgment for Plaintiff for three times the amount of said damages.
7. That in view of the willful, knowing, malicious, wanton and deliberate
nature of Defendant’s wrongful acts, punitive and exemplary damages be awarded to Plaintiff.
8. That Plaintiff recover from the Defendant its reasonable attorneys’ fees
together with the costs of this action.
9. That Plaintiff be awarded such other and further relief as the Court may
deem just and proper.
DESIGNATION OF PLACE OF TRIAL
Plaintiff hereby designates Kansas City, Kansas as the place of trial.
JURY TRIAL DEMAND
Plaintiff hereby makes demand for a trial by jury as to all issues herein so triable.
Respectfully submitted,
By:/s/ James J. Kernell
James J. Kernell, #19559
Ginnie C. Derusseau, #16988
Kyle D. Donnelly, #25531
ERICKSON KERNELL DERUSSEAU
& KLEYPAS, LLC
8900 State Line Road, Suite 500
Leawood, Kansas 66206
Telephone: (913) 549-4700
Facsimile: (913) 549-4646
E-Mail: jjk@kcpatentlaw.com
Attorney for Plaintiff
Pop-A-Shot, Inc.
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